A durable power of attorney names someone to handle your finances and property if you cannot, and an advance directive for health care names someone to make medical decisions and records your wishes about treatment. In New Jersey, both must be signed while you still have capacity. Without them, your family may have to go to court for a guardianship, which is slower, more expensive, and more intrusive than a document you signed in advance.
What does a durable power of attorney do in New Jersey?
A power of attorney appoints an agent (sometimes called an attorney-in-fact) to act for you in financial and legal matters: banking, paying bills, managing investments, handling real estate, dealing with insurers and government agencies, and filing tax returns. New Jersey's statute is N.J.S.A. 46:2B-8.1 et seq.
Key points:
- Durability. A durable power of attorney keeps working if you become incapacitated. That is the whole point for estate planning purposes, so the document should say so expressly.
- Formalities. It must be in writing, signed, and acknowledged before a notary or other authorized officer.
- Immediate or springing. It can take effect right away or only when you become incapacitated. Immediate powers are easier to use; springing powers require proof of incapacity, which can cause delay when your agent needs to act.
- Gifting authority must be spelled out. An agent can make gifts of your property only if the document expressly allows it. That matters for long-term care and Medicaid planning, which often depends on the agent's ability to transfer assets.
- Fiduciary duty. Your agent must act in your interest, keep your money separate, and keep records. Choose someone trustworthy, name a backup, and consider whether the agent should account to someone else.
A power of attorney ends at your death. After that, your executor takes over under your will.
What happens if you become incapacitated without one?
If you cannot manage your affairs and have no valid power of attorney, your family generally must ask the Superior Court, Chancery Division, Probate Part to appoint a guardian. That process typically requires medical certifications, a court-appointed attorney for the person alleged to be incapacitated, a hearing, and ongoing reporting to the court. It takes time and money, and the court, not you, decides who serves. Trust assets are an exception: a successor trustee can manage assets in a living trust without a guardianship.
What is an advance directive for health care?
New Jersey's Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq., recognizes two kinds of directive, and many people combine them in one document:
- Proxy directive. Names a health care representative, plus alternates, to make medical decisions for you when you cannot make them yourself.
- Instruction directive (living will). States your wishes about life-sustaining treatment, such as mechanical ventilation, artificial nutrition and hydration, and resuscitation, in situations like a terminal condition or permanent unconsciousness.
An advance directive generally takes effect only when your attending physician determines that you lack the capacity to make a particular decision. To be valid, it must be signed and dated, and either witnessed by two adults or acknowledged before a notary, attorney, or other authorized officer. The person you name as your health care representative should not serve as a witness.
Give copies to your representative, your doctors, and the hospital you use. A directive locked in a drawer does not help in an emergency room. It is also wise to sign a HIPAA authorization so that the people helping you can get information from providers.
How is a POLST different from an advance directive?
A POLST (Practitioner Orders for Life-Sustaining Treatment) is a medical order, not a legal planning document. It is completed with a clinician, usually by someone who is seriously ill or frail, and it translates current wishes into orders that emergency responders and facilities follow. It complements an advance directive; it does not replace one, and it does not name a decision-maker.
Talking to a lawyer about your situation
These documents get less attention than a will, but for many families they matter sooner. A lawyer can tailor the powers to your situation, including gifting authority for long-term care planning, and make sure everything is signed correctly so that banks and hospitals are more likely to accept them without questions. They belong in every estate plan, whatever its size.
Gray Law Group is in Jefferson and works with individuals and families throughout Morris, Sussex, Warren and Passaic counties and northern New Jersey. If you, or a parent, need these documents in place, we would be glad to help.
Frequently asked questions
Does a power of attorney have to be notarized in New Jersey?
Yes. A New Jersey power of attorney must be in writing, signed, and acknowledged before a notary or another officer authorized to take acknowledgments, such as an attorney. Banks and title companies will look closely at how it was signed.
Can my spouse make decisions for me without a power of attorney?
Not across the board. A spouse cannot sign for you on accounts or property in your sole name, and may not be able to deal with jointly held real estate alone. Without documents in place, a court guardianship may be needed.
Does a power of attorney end at death?
Yes. An agent's authority ends when you die. From that point the executor named in your will, once appointed by the Surrogate, takes over.
Can I revoke a power of attorney or advance directive?
Yes, as long as you have capacity. Revoke a power of attorney in writing and notify the agent and any institution that has a copy. An advance directive can be revoked by notifying your health care representative or providers, or by signing a new one.
This website is for informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome.